United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFFS' MOTION FOR PARTIAL
SUMMARY JUDGMENT RE: DKT. NOS. 43, 44
H. KOH United States District Judge
Jean Rustico and John Rustico (“Plaintiffs”)
bring the instant lawsuit against Defendant Intuitive
Surgical, Inc. (“Defendant”). Before the Court is
Defendant's motion for summary judgment, ECF No. 43, and
Plaintiffs' motion for partial summary judgment, ECF No.
44. Having considered the submissions of the parties, the
relevant law, and the record in this case, the Court GRANTS
Defendant's motion for summary judgment. The Court DENIES
Plaintiffs' motion for partial summary judgment.
Jean Rustico and John Rustico (“Plaintiffs”) are
husband and wife. ECF No. 30 ¶¶ 1-2. Both
Plaintiffs reside in Florida. Id. Defendant
Intuitive Surgical, Inc. (“Defendant”) is a
Delaware corporation that is headquartered in California.
Id. ¶ 3. Defendant manufactures and sells the
robotic da Vinci surgical system, as well as
electrosurgical equipment used in tandem with the da
Vinci surgical system. Id.
Jean Rustico's Surgery
January 12, 2012, Jean Rustico underwent a hysterectomy in
order to remove an ovarian mass. ECF No. 43-1 Ex. A
(“Operative Report”) at 1. The hysterectomy was
performed by Dr. Clare Zhou (“Dr. Zhou”) at the
Hospital of Central Connecticut. Id. Dr. Zhou used a
da Vinci surgical system during the procedure, which
included a “monopolar curved scissors” instrument
with a tip cover accessory. Id.; ECF No. 43 at 2.
The tip cover accessory served as insulation that was
designed to prevent electricity from escaping from the da
Vinci surgical system and injuring patients. ECF No. 30
the course of Jean Rustico's hysterectomy, Dr. Zhou
noticed that the tip cover “on the monopolar scissors
malfunctioned and leaked electricity onto the atherosclerotic
aorta. This created an adventitial injury about 3-5mm in
size.” Operative Report at 4. Dr. Zhou contacted Dr.
Akella Sarma (“Dr. Sarma”), a vascular surgeon,
who initially advised Dr. Zhou to suture the injury and
continue with the procedure. Id. However, Dr. Zhou
continued to note “brisk bleeding” “from
the aortic injury.” Id. Accordingly,
“the decision was made to convert to laparotomy”
and an open repair of the aortic injury, id. which
required Dr. Sarma to intervene and manually repair the
injury, id. at 7. After Dr. Sarma repaired the
aortic injury, Dr. Zhou completed the hysterectomy.
Id. at 4-5.
Jean Rustico awoke, Dr. Zhou informed Plaintiffs that
“there were complications from the robotic surgery
during the surgery.” ECF No. 43-1 Ex. D at 33:25-34:1.
Dr. Zhou indicated that there had been damage done to Jean
Rustico's aorta, and that the cause of the damage had
been “the robotical [sic] equipment
malfunctioning.” Id. at 34:10-11.
Specifically, Dr. Zhou told Jean Rustico that the da
Vinci unit's “electrical component caus[ed]
the damage.” Id. at 36:11-12. Jean
Rustico's husband, John Rustico, was present for the
discussion. Id. at 34:19-20. Jean Rustico did not
ask Dr. Zhou why the surgical complication had occurred.
Id. at 41:2-4. John Rustico testified that Dr. Zhou
also separately explained to him that there had been
“problems with the robot that led to Jean
[Rustico]'s abdominal aorta being damaged, ” which
had required Dr. Sarma's intervention. ECF No. 43-1 Ex. E
at 21:2-3. John Rustico testified that Dr. Zhou had explained
that there “was a burn that caused a hole in the aorta
from malfunction of the robot.” Id.
report that Dr. Zhou prepared on January 20, 2012, Dr. Zhou
indicated that during the procedure on Jean Rustico,
“the insulating sheath on the monopolar scissors
malfunctioned and leaked electricity onto the atherosclerotic
aorta.” ECF No. 48-1 Ex. 16 at ECF 231. In the days
following the surgery, Dr. Zhou also informed one of
Defendant's employees that during the procedure,
“she was seeing arching [sic] throughout the
case, replaced the tip cover 3 times and it didnt
[sic] fix the issue.” Id. at ECF 223.
Dr. Zhou testified that at some point after the surgery, Dr.
Zhou “asked [Defendant], you know, are they going to
make improvements to prevent this, and [Dr. Zhou] was under
the understanding that something was going to be coming
out.” ECF 48-1 Ex. 13 at 56:8-10.
Rustico was discharged from the hospital on January 16, 2012.
ECF No. 43-1 Ex. D at 45:16-20. Notwithstanding the surgical
complication, Jean Rustico was discharged in good condition.
Id. at 46:5-7. Later, in September 2013, Jean
Rustico witnessed a television advertisement and opted to
contact an attorney to discuss a potential claim against
Defendant. Id. at 41:22-25, 42:1-4.
The Tolling Agreement
26, 2013, Defendant sent a proposed tolling agreement
(“Tolling Agreement”) to Plaintiffs' counsel.
ECF No. 43-1 Ex. B (“Tolling Agreement”). The
Tolling Agreement provided a framework for potential
plaintiffs who sought to file “personal injury claims
for monetary damages against [Defendant] involving the da
Vinci Surgical System.” Id. In
particular, the terms of the Tolling Agreement indicated that
the Tolling Agreement would “toll the applicable
statute of limitations for a three month period starting on
the date [Defendant] is provided with a Claimant's name.
If necessary, this period may be extended upon agreement of
the parties.” Id. The Tolling Agreement also
stated in relevant part that “if a Claimant determines
to file a lawsuit, any such lawsuit shall be filed in the
Northern District of California only and only in the form of
a single plaintiff family complaint.” Id. The
Tolling Agreement contained an express disclaimer: “The
tolling of the applicable statute of limitations is not
intended to and shall not for any purposed be deemed to limit
or adversely affect any defense, other than a
statute-of-limitations defense, that [Defendant] has, may
have, or would have had in the absence of this agreement. Nor
does this agreement waive or release any statute of
limitations defense that could have been asserted before the
date of the tolling period. Upon the completion of the
tolling period, [Defendant] will have all defenses available
to it as it had on the first day of the tolling
August 9, 2013, Plaintiffs' counsel returned an executed
copy of the Tolling Agreement to Defendant. Id.
Later, on February 3, 2014, Plaintiffs' counsel sent
Defendant a list of names, which included Jean Rustico,
“for the purposes of including these folks as of
today's date in the Penton Law Firm tolling
agreement.” ECF No. 43-1 Ex. C. Although the record is
unclear on the details, “[t]he parties subsequently
extended the tolling agreement several times, ” and it
appears that the instant claims “were continually
tolled from February 3, 2014, until the filing of this
lawsuit in April 2018.” ECF No. 43 at 4.
April 13, 2018, Plaintiffs filed an initial complaint in the
Northern District of California, which alleged claims for (1)
strict product liability as to a defect in construction, (2)
strict product liability as to a defect in design, (3) strict
product liability as to a defect in marketing, (4) negligence
and negligence per se, (5) strict liability, (6)
negligent misrepresentation and/or intentional
misrepresentation, (7) fraud, and (8) loss of consortium. ECF
No. 1 ¶¶ 106- 154. Plaintiffs' claims alleged
the existence in the da Vita surgical system of
“insulation defects and/or surgical operational hazards
that made [the da Vinci surgical system] more prone
to causing electrosurgical injuries than open surgery.”
Id. Defendant answered Plaintiffs' initial
complaint on May 24, 2018. ECF No. 16.
17, 2018, Plaintiffs' counsel filed a motion to
consolidate the instant case with twenty-five other related
cases against Defendant. 5:18-CV-02186-LHK, ECF No. 25-1. On
July 18, 2018, the Court granted the motion to consolidate,
which thus consolidated the instant case with twenty-five
other cases. ECF No. 29. For the purposes of efficiency, the
Court instructed Plaintiffs' counsel and Defendant to
each select one case each from the group of consolidated
cases to litigate through dispositive motions and potentially
into trial. ECF No. 35 at 58:11-14, 59:12-14. The Court set
September 16, 2019, as the deadline for the selections.
5:18-CV-02186-LHK, ECF No. 102.
November 26, 2018, Plaintiffs filed the First Amended
Complaint (“FAC”). ECF No. 30
(“FAC”). The FAC added two additional claims
against Defendant: a claim for breach of express warranty,
and a claim for breach of implied warranty. Id. at
42-45. On December 5, 2018, Defendant answered the FAC. ECF
September 16, 2019, Plaintiffs' counsel selected the
instant case as their allotted choice to proceed to
dispositive motions and potentially trial. 5:18-CV-02186-LHK,
ECF No. 113.
filed the instant motion for summary judgment on October 4,
2019. ECF No. 43 (“Mot.”). On October 30, 2019,
Plaintiffs opposed the motion, ECF No. 48
(“Opp'n”), and on November 15, 2019,
Defendant replied, ECF No. 51 (“Reply”).
Plaintiffs filed the instant motion for partial summary
judgment on October 4, 2019. ECF No. 44. Defendant opposed
the motion on October 30, 2019, ECF No. 49, and Plaintiffs
replied on November 15, 2019, ECF No. 52.
judgment is proper where the pleadings, discovery, and
affidavits show that there is “no genuine dispute as to
any material fact and [that] the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a).
Material facts are those which may affect the outcome of the
case. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute as to a material fact is genuine
if there is sufficient evidence for a reasonable jury to
return a verdict for the nonmoving party. See id.
party moving for summary judgment bears the initial burden of
identifying those portions of the pleadings, discovery and
affidavits that demonstrate the absence of a genuine issue of
material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Once the moving party meets its initial
burden, the nonmoving party must go beyond the pleadings and,
by its own affidavits or discovery, “set forth specific
facts showing that there is a genuine issue for trial.”
Fed.R.Civ.P. 56(e). If the nonmoving party fails to make this
showing, “the moving party is entitled to judgment as a
matter of law.” Celotex Corp., 477 U.S. at
summary judgment stage, the Court must view the evidence in
the light most favorable to the nonmoving party: if evidence
produced by the moving party conflicts with evidence produced
by the nonmoving party, the judge must assume the truth of
the evidence set forth by the nonmoving party with respect to
that fact. See Leslie v. Grupo ICA, 198 F.3d 1152,
1158 (9th Cir. 1999).
Defendant's motion for summary judgment, Defendant argues
that Plaintiffs' claims are all untimely. In order to
resolve the issue of timeliness, the Court must first
determine whether the California or Connecticut statute of
limitations governs Plaintiffs' claims. As ...